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Fast approaching is the June 1 expiration of certain provisions of the Patriot Act, including § 215 (codified as50 U.S.C § 1861), which is the basis for the National Security Agency’s (NSA) bulk telephone metadata collection program (the “telephone metadata program”). The future of the program is unclear in light of ACLU, et al. v. Clapper, et al., a recent Second Circuit decision that struck down the program as illegal under § 215, and the continued turmoil in Congress regarding efforts to reform or renew the Patriot Act. InACLU v. Clapper, the Second Circuit overturned the district court’s dismissal of ACLU’s complaint, ruling that the NSA’s telephone metadata program was illegal under § 215. The program first came to light in 2013 after former government contractor Edward Snowden leaked documents exposing its details to a British newspaper. The NSA has since admitted that the program has been in place since at least May 2006. Under the program, numerous Foreign Intelligence Surveillance Court (FISC) orders were issued to various telephone companies ordering the production of all call detail records or telephony metadata on an “ongoing daily basis.” NSA compiled the date into a database that was accessed and searched when a “reasonable, articulable suspicion” arose that a telephone number was associated with a foreign terrorist organization.

The Court found that the telephone metadata program was too broad in that it “requires that the phone companies turn over records on an ‘ongoing daily basis’ – with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.” The Court further held that the telephone metadata program ignored § 215’s requirement that the collection be tied to an authorized investigation, since it compiles such data “in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry.” The Court further noted, in rejecting the government’s attempt to expand the meaning of “relevancy” in § 215 that “[s]uch a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft-used language long held in similar contexts to mean something far narrower.” The Court declined to address the constitutionality of § 215 and was careful to avoid opining on the constitutionality of any potential alternative versions of the program that could be crafted by Congress.

In the meantime, Congress is battling over Patriot Act reform measures. The House passed the USA Freedom Act last week, a popular bill supported by the White House that would end the NSA’s bulk data collection program as we know it. (As theClapper court noted, the USA Freedom Act’s version of § 215 would place bulk metadata collection in the hands of the telecommunications providers, to be accessed by the government only with FISC authorization). The Senate remains deeply divided on how it will proceed in light of the looming June 1 deadline. As reported by various media outlets, Senate Majority Leader Mitch McConnell said on Tuesday that he would bring the USA Freedom Act up for a vote this week. Concerns remain, however, regarding whether it has sufficient support to pass the Senate. Alternatively, a faction of the GOP is still pushing for an extension of the Patriot Act in its current form. Any efforts to extend the present version of § 215, however, are faced with filibuster threats on both side of aisle. Will we have clarity on the fate of § 215 by June 1? Stay tuned….

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